Committee
Against Torture, Consideration of reports submitted by States Parties under
article 19 of the Convention, Czech Republic, U.N. Doc. CAT/C/21/Add.2 (1994).

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION

Initial report of States Parties due in 1993

Addendum

CZECH REPUBLIC[18 April 1994]

I. GENERAL
INFORMATION

A. Introduction
1. The Czech Republic came into existence on 1 January 1993 as
a result of the dissolution of the Czech and Slovak Federal Republic
into two separate and independent States. On 19 January 1993 it
was accepted as a member of the United Nations and succeeded to
all the human rights documents binding for the former Czechoslovak
State. On 8 September 1986, the then Czechoslovak Socialist Republic
signed the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (hereinafter referred to
as "the Convention") and its instrument of ratification
was submitted to the United Nations Secretary-General on 7 July
1988. The Convention entered into force on 6 August 1988 and was
published in the Official Journal under No. 143/1988. The
initial report of the Czech and Slovak Federal Republic was published
in document CAT/C/7/Add.12. Due to the establishment of the Czech
Republic, the former Czechoslovak legal system is currently being
taken over and innovated with the aim of achieving the compatibility
of domestic legislation with the international commitments of
the State.

B. Other
treaty commitments in this field
2. Torture and other cruel, inhuman or degrading treatment or
punishment is considered in the Czech Republic to be one of the
grossest violations of human rights and fundamental freedoms.
The Czech Republic expressed its consistent support of this principle
not only by ratifying the Convention but also by fulfilling its
obligations under the Universal Declaration of Human Rights and
under other international human rights treaties.

3. Since 1976, the Czech Republic has been a party to the International
Covenant on Civil and Political Rights. The Covenant was published
in the Official Journal under No. 120/1976. Since 1991,
the Czech Republic has also been a party to the Optional Protocol
to the International Covenant on Civil and Political Rights, published
in the Official Journal under No. 169/1991.

4. The Czech Republic is furthermore a party to other multilateral
treaties in this field, e.g. to the Geneva Conventions of 12 August
1949 for the protection of war victims, the 1968 Convention on
the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity, the 1979 International Convention against
the Taking of Hostages, the 1989 Convention on the Rights of the
Child, etc.

5. Since 18 March 1992, the Czech Republic as a successor of the
Czech and Slovak Federal Republic has been a party to the 1950
European Convention on the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocol Nos. 3, 5 and 8, and other Additional
Protocols thereto, including Protocol No. 6 on the abolition of
capital punishment. The Czech Republic has not so far become a
party to the Second Optional Protocol to the International Covenant
on Civil and Political Rights concerning the abolition of capital
punishment, nor to the European Convention on the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment, signed
by the former Czech and Slovak Federal Republic on 23 December
1992. The ratification of this Convention is, however, in preparation.

6. The Czech Republic is a party to several dozen bilateral treaties
on legal assistance in all criminal cases and on extradition of
criminals. The Czech Republic considered the general principles
of international criminal law as a base in the process of concluding
the treaties.

C. General
legal framework
7. Since the end of 1991, when the initial report on the implementation
of the Convention was defended in Geneva, the following legal
regulations have been issued in the former Czech and Slovak Federal
Republic and in the present Czech Republic:

- Act No. 140/1961, Criminal Code as amended by later provisions;

- Act No. 141/1961, Code of Criminal Procedure as amended by later
provisions;

- Act No. 99/1963, Code of Civil Procedure as amended by later
provisions;

- Act No. 40/1964, Civil Code as amended by later provisions;

- Act No. 59/1965 on the enforcement of prison sentences;

- Act No. 124/1992 on military police;

- Decree of the Ministry of the Interior No. 129/1992 on professional
qualifications of police staff and their examination;

- Act No. 186/1992 on the official status of the staff of the
police of the Czech Republic;

- Decree of the Ministry of Justice of the Czech Republic No.
247/1992 establishing the rules for the execution of custodial
sentence in prisons of the Czech Republic;

- Act No. 279/1992 on some of the other preconditions for the
performance of some functions filled by appointment or nomination
of members of the staff of the police of the Czech Republic and
members of the prison guard corps of the Czech Republic;

- Decree of the Ministry of the Interior of the Czech Republic
No. 290/1992 implementing the Act on the police of the Czech Republic;

- Act No. 555/1992 on the prison service and court guards of the
Czech Republic;

- Constitutional Act No. 1/1993, Constitution of the Czech Republic
and the preceding constitutional acts on the dissolution of the
Czech and Slovak Federal Republic;

- Resolution of the Presidium of the Czech National Council No.
2/1993 on the promulgation of the Charter of Fundamental Rights
and Freedoms as a part of the constitutional order of the Czech
Republic;

- Act No. 182/1993 on the Constitutional Court;

- Act No. 283/1993 on the Public Prosecutor's Office;

- Act No. 293/1993 on the enforcement of custody;

- Act No. 294/1993 which amends and supplements Act No. 59/1965
on the enforcement of prison sentences as amended by later provisions.

8. The basic legal regulation providing protection against acts
covered by the Convention is the Constitution of the Czech Republic
including the Charter of Fundamental Rights and Freedoms promulgated
by constitutional act on 9 January 1991 and adopted by a Resolution
of the Presidium of the Czech National Council (Parliament of
the Czech Republic) by Act No. 2/1993 on the promulgation of the
Charter of Fundamental Rights and Freedoms as a part of the constitutional
order of the Czech Republic. Article 2 of this act reads as follows:

"International
treaties on human rights and fundamental freedoms ratified
and promulgated by the Czech and Slovak Federal Republic are
universally binding on its territory and supersede its own
laws."

9. Article 7 of this act states:

"(1) Inviolability
of the person and of privacy is guaranteed. It can be restricted
only in cases specified by law.

"(2) Nobody
may be subjected to torture or to inhuman or degrading treatment
or punishment."

10. The most serious attacks against the integrity of a person,
his/her dignity and freedom of decision are viewed as criminal
offences and as such they are punishable. The Criminal Code (Act
No. 140/1961, as amended by subsequent regulations) thus represents
the basic document of protection against all forms of violence
as described under the term of "torture" in articles
1 and 16 of the Convention. The legal protection of the inviolability
of a person permeates the entire Criminal Code since it is linked
with the equality of all citizens, with their protection against
generally dangerous acts and criminal acts relating to the exercise
of the jurisdiction of State bodies and public officials.

11. On 10 November 1993 and with effect from 1 January 1994 an
amendment to the Criminal Code was adopted (Act No. 290/1993).
In the sense of the recommendation of the Committee against Torture
and within the framework of the discussion concerning the initial
report of the former Czech and Slovak Federal Republic on the
implementation of the Convention, the amendment embodies a new
definition of the criminal act of "torture and other inhuman
and cruel treatment" as section 259a of the Criminal Code.
The section reads as follows:

"(1) Whoever
causes physical or mental suffering in connection with the
performance of the jurisdiction of a State body or local authority
or a court of justice by torture or other inhuman or cruel
treatment shall be punished by imprisonment for a term of
six months to three years.

"(2) Whoever

"(a) commits
the act mentioned in paragraph 1 as a public official;

"(b) commits
the act together with at least two persons; or

"(c) commits
the act for a prolonged period of time;

shall be punished
by imprisonment for a term of one year to five years.

"(3) Whoever
causes serious bodily harm by the act mentioned in paragraph
1 shall be punished by imprisonment for a term of five to
10 years.

"(4) Whoever
causes death by the act mentioned in paragraph 1 shall be
punished by imprisonment for a term of eight to 15 years."

12. The Code of Criminal Procedure (Act No. 141/1961, as amended
by subsequent regulations) states in its section 2, paragraph
4, that the authorities acting in criminal proceedings shall act
ex officio; they shall deal with criminal cases as expeditiously
as possible and in doing so they shall fully respect the civil
rights guaranteed by the Constitution. Section 52 provides for
the manner of performing all procedural acts in criminal proceedings,
that is also the acts performed prior to starting criminal prosecution.
Section 52 reads as follows:

"When performing
procedural acts in criminal proceedings, the persons involved
in the act shall be treated in accordance with the importance
and educational purpose of criminal proceedings; their dignity
and their constitutional rights shall at all times be respected."

13. Section 91, paragraph 1, provides for the interrogation of
an accused. The text of this provision states:

"An accused
shall in no way be forced to make a statement or to confess
and his dignity shall be respected in the course of the interrogation."

14. As in the case of the Criminal Code, the Code of Criminal
Procedure has been substantially amended since the time of the
submission of the initial report of the Czech and Slovak Federal
Republic.

15. The inviolability of a person is also protected by the civil
law. The provision of section 11 of the Civil Code (Act No. 40/1964)
states explicitly:

"A citizen
has the right to the protection of his person, notably his
life and health, civic honour, as well as his name and expressions
of a personal nature."

16. Under the amended section 13 of the Civil Code a citizen has
the right to court protection and the right to insist that unjustified
restrictions of his right to protection of person be refrained
from, that the consequences of such restrictions be remedied and
that appropriate satisfaction be given, including the possibility
of according the injured person a pecuniary compensation under
certain conditions.

17. Section 13 of Act No. 40/1964 in the wording of Act No. 87/1990
by which the Civil Code has been amended and supplemented now
reads as follows:

"(1) A citizen
has, in particular, the right to insist that the unjustified
restriction of his/her right to protection of his/her person
be refrained from, that the consequences of such infringements
be removed and that the appropriate satisfaction be given
to him/her.

"(2) Should
satisfaction provided to a citizen under paragraph 1 appear
insufficient, notably on the grounds that his dignity or his
prestige in society suffered considerable damage, the citizen
also has the right to pecuniary compensation for such non-material
damage.

"(3) The extent
of compensation under paragraph 2 shall be determined by a
court taking into account the gravity of the damage and of
the circumstances under which the infringement of the right
has occurred."

18. The relevant provision is also embodied in other generally
binding legal regulations. It concerns, for instance, the Act
on the right to petition, the Act on health care, the Act on the
periodical press and the mass media and also Decree No. 150/1958
on processing complaints, announcements and suggestions of employees.

19. The regulations providing for the activities of police, courts
and the Public Prosecutor's Office contain not only the prohibition
of torture and other similar acts listed in article 16 of the
Convention but also a more general prohibition of coercion in
the interrogation of the accused, the use of cruel and inhuman
treatment or punishment and the obligation of these organs to
respect the person of the accused (notably the above-mentioned
section 91, paragraph 1, of the Criminal Code) and his/her human
dignity. The execution of a penalty must in no way degrade human
dignity (sect. 23, para. 2, of the Criminal Code). The amended
Act on the execution of prison sentences No. 179/1990 states in
its section 1, paragraph 2, that in the course of the execution
of prison sentences the natural dignity of a human person must
be respected and no cruel treatment, or treatment or punishment
degrading human dignity, may be used. Further to this provision
there is section 10, paragraph 1, of the Act stating that in the
course of the execution of punishment only such civil rights of
the convicted may be restricted, the exercise of which would stand
in contradiction to the purpose of the execution of the sentence
(para. 1) or that cannot be exercised on account of the execution
of the sentence.

20. With regard to a witness ("a third person" in the
sense of article 1 of the Convention), the provision of section
52 of the Code of Criminal Procedure stipulates that in the performance
of the procedural acts in criminal proceedings it is at all times
necessary to respect the dignity of the person of the accused
and the constitutional rights of the persons involved in the acts.

21. As far as the military sphere is concerned, the activities
of the military police of the Army of the Czech Republic are subject
to the above-mentioned Act No. 124/1992 and also to the Criminal
Code and to the Code of Criminal Procedure.

22. The work of the prison guard corps is regulated by the above-mentioned
Act on the prison guard corps and court guards of the Czech Republic.
Section 6 of this Act imposes upon the members of the prison guard
corps "the obligation to treat the prisoners serving their
sentences in a serious and decisive manner, to respect their rights,
to prevent cruel treatment or treatment degrading human dignity
of these persons or any such treatment among themselves and to
assist the fulfilment of the purpose of the execution of custody
or of the imprisonment sentence." Paragraph 2 of this section
also imposes upon a member of the prison guard corps the obligation
to bear in mind in the course of the execution of his/her duties
the honour and dignity of the persons he/she deals with and not
to allow any unjustified detriment to these persons and to ensure
that an infringement of their rights and freedoms does not exceed
the level necessary for attaining the purpose of an intervention
or service act. The provisions of the Convention further concern
paragraphs 17 to 20 of the Act which provide for the possibility
of using devices to exercise coercion, including restrictions
on their use.

D. Competent organs

23. Jurisdiction
in the matters regulated by the Convention is exercised by police
organs, organs of State administration and the civil courts. As
regards the codification of the matters embodied in the Convention,
the competent body is the Chamber of Deputies of the Parliament
of the Czech Republic. Persons mentioned in article 1 of the Convention,
notably public officials, must, in exercising their jurisdiction,
strictly observe the Czechoslovak legal regulations governing
the manner of the exercise of that jurisdiction as well as the
conditions under which the different actions can be taken. The
honour, reputation and dignity of citizens guaranteed by the Constitution
must be respected in all cases. Failure to respect these provisions
is qualified under Czech law as abuse of the authority of a public
official under section 158 of the Criminal Code which says:

"Any public
official who, acting with the intent to cause damage to another
person or to obtain unauthorized benefit for himself or for
another person (a) exercises his authority in a manner contrary
to the law, or (b) exceeds his competence or fails to fulfil
an obligation stemming from his competence, shall be punished
by imprisonment for a term of six months to three years or
by prohibition of the activity."

24. Due
to the adoption of the new Act No. 283/1993 on the Public Prosecutor's
Office replacing the former system of prosecution, the prosecutor's
authority in places of custody or imprisonment has been removed.
The control and supervision of such places shall be the responsibility
of the Prison Department - Section for Supervision of the Enforcement
of Custody and Prison Sentences, as an authorized organ of the
Ministry of Justice of the Czech Republic organizationally detached
from the Prison Guard Service of the Czech Republic and completely
independent thereof.

E. Legal remedies

25. The
protection of the rights of citizens is secured above all by the
courts and by administrative bodies. Every person, regardless
of whether he/she is a citizen of the Czech Republic, has the
right to invoke such protection. In proceedings, the said bodies
are obliged to inform the participants about their rights and
duties. In all likelihood, the scope of remedies for the legal
protection of the population of the Czech Republic shall be supplemented
after the establishment of the currently envisaged administrative
judiciary in the territory of the State. A system of administrative
judiciary has been implemented since 1 January 1992 on the basis
of Act No. 519/1991 and what remains is to establish the Supreme
Administrative Court. Further guarantees of the lawfulness of
proceedings stem from the supervisory functions of authorities
and control bodies and, last but not least, from the norms of
the right to petition based on article 18, paragraph 1, of the
Charter of Fundamental Rights and Freedoms and from the right
to defence, and, if need be, the right to legal representation
in criminal, civil or administrative matters.

"The right
to petition is guaranteed; every person, by himself or herself
or together with other persons, has the right to address State
organs or local authorities with requests, proposals or complaints
in the matters of public or common interest."

27. A
person who is of the opinion that he has been subjected to torture
or to other similar treatment is entitled, according to the nature
of the detriment caused, to lodge a complaint under section 158
of the Code of Criminal Procedure under which the prosecutor,
the investigator and the police organ have the duty to receive
reports on criminal offences and to process them as expeditiously
as possible. The investigator and the police organ are obliged
to take all the necessary measures to disclose all the criminal
offences and to identify the offenders; they are also duty-bound
to take the necessary measures for the prevention of criminal
activity. In order to verify reports indicating that a criminal
offence has been committed or that there is another motive for
a criminal prosecution, the investigator and the police organ
take measures to obtain the essential information and the necessary
explanations and investigate and secure evidence. If the established
facts attest that a criminal offence has been committed, criminal
prosecution shall be initiated without delay. The special provision
concerning this duty is included in section 4 of Act No. 283/1993
on public prosecution.

28. If,
through an unlawful action by public officials or other official
persons, detriment has been caused to a person, the injured party
is entitled to compensation for the damage caused due to incorrect
official action and/or to an unlawful decision. The claim for
damages is addressed directly to the State (Act No. 58/1969, on
responsibility of the State for damage caused by a decision of
a State body or by its incorrect official action).

29. Further
provisions on compensation are contained in Act No. 119/1990,
on judicial rehabilitation; under this Act compensation is provided,
inter alia, in those cases where incorrect decisions have
been taken as a result of acts defined in the Convention. Section
14, paragraph 1 (b) of the Act says:

"When a court
finds in review proceedings that the decision under review
is faulty, notably in those cases when flagrant violations
of the procedural regulations were committed in the former
proceedings, especially when force or other means were used
to extort a confession out of a person, it revokes the decision
as a whole or that part thereof which is faulty."

30. A
draft act on the establishment of the institution of ombudsman
in the Czech Republic passed through the first round of interdepartmental
debate in 1993 and at present the comments are being processed
and the text redrafted. The opinions of the professional public
on the need for such an institution are, however, often conflicting.
The principal task of the ombudsman should be to improve the system
of protection of the rights of citizens against unjustified action
by administrative organs. The chief argument for the establishment
of the institution is the increase of administrative machinery
of the State and the ensuing higher probability of an increase
in conflicts between citizens and the State. The main supporters
of the act are the representatives of opposition parties and non-governmental
human rights organizations; the establishment of the institution
is also supported by the Office of the President of the Czech
Republic. On the other hand, the institution has no tradition
in the Czech Republic and can be opposed by arguing that human
rights must be guaranteed above all by the judiciary.

F. Conclusions

31. On
the basis of the available sources of information (regular daily
reports by the prison guard corps of the Czech Republic to the
Minister of Justice of the Czech Republic, monthly reports by
the General Directorate of the prison guard corps on exceptional
events in the prison guard corps' service and records of the prosecutor's
periodical inspections of the prisons to verify respect for the
laws inside them), no case of torture or other situation covered
by the Convention has been disclosed by the Public Prosecutor
of the Czech Republic. No complaint was lodged by citizens or
prisoners in connection with any breach of the provisions of the
Convention.

32. Official
statistics show that military health facilities were to undertake
medical examinations or other treatment of persons in custody
in 10 cases and none of the cases involved the consequences of
maltreatment or symptoms of torture. From 1 January to 14 August
1993, no person was convicted of the criminal acts covered by
article 1 of the Convention.

33. Individual
complaints lodged by prisoners, i.e. persons who are in the greatest
danger of becoming victims of acts covered by the definition of
torture, are also dealt with by non-governmental organizations.
The most common complaint is that there is no valid reason for
custody. There have also been complaints concerning the placement
of prisoners with a different sexual orientation in common cells
and concerning the slow processing of complaints. However, the
data supplied by independent organizations at present fail to
disclose the occurrence of any cases of torture or other acts
defined in article 1 of the Convention in the territory of the
Czech Republic.

II. INFORMATION RELATING TO THE INDIVIDUAL ARTICLES OF
PART I OF THE CONVENTION

Article
2

Paragraph
1

34. As
has already been said above, Czech legislation has many effective
instruments preventing the occurrence of cases of torture in the
territory of the Czech Republic. The basis is provided by the
above-mentioned article 7, paragraph 2, of the Charter of Fundamental
Rights and Freedoms.

35. The
Act on the police does not prohibit torture explicitly (the explicit
prohibition is contained in the Charter of Fundamental Rights
and Freedoms and in the Criminal Code), but it nevertheless contains
sufficient legal instruments ensuring compliance with the Convention,
e.g. it stipulates the duty of a police officer to respect the
honour and dignity of persons. In the execution of an official
measure or act, no unjustified harm may be caused to persons and
no intervention in the rights of persons may exceed the limits
necessary to achieve the purpose of the official measure or act.
Moreover, there is a constitutional precondition that a policeman
as a representative of the State may apply State authority only
in cases and within the limits given by law and in a way stipulated
by law.

Paragraph
2

36. The
Czechoslovak legal system does not permit any exceptions from
the prohibition of the use of torture and other similar treatment
or punishment under extraordinary circumstances. This prohibition
is absolute and unconditional in the whole territory and under
any circumstances.

Paragraph
3

37. The
principle that an order by a superior can in no way justify torture
and thus free the offender of criminal responsibility is expressly
formulated in the Act on the official status of police officers,
which stipulates that:

(a)
Under section 27, in case there is a well-grounded suspicion that
a police officer has violated his/her official duties in an exceptionally
serious manner or that he/she has committed a criminal offence
(e.g. he is suspected of torture or inhuman or degrading treatment),
the performance of his/her official function can be suspended
temporarily by the decision of an official functionary;

(b)
Under section 28, a police officer has the duty to notify his/her
superior in case he/she believes that the superior's order is
not in compliance with a generally binding legal provision. A
police officer has the duty to refuse to obey his/her superior's
order in case he/she would commit a criminal offence by obeying
it and to notify a higher-ranking superior without unreasonable
delay.

Article 3

38. Section
379, paragraph 1, of the Code of Criminal Procedure says:

"1. The public
prosecutor to whom the Ministry of Justice or the Prosecutor
General have referred the application of a foreign State for
extradition, or who has learned of a crime for which a foreign
State may ask for the extradition, shall hold a preliminary
investigation. The purpose of the preliminary investigation
shall be to determine whether there exist conditions for the
extradition, in particular whether the crime involved is punishable
under the law of both States and constitutes an extraditable
crime, whether its punishability has become statute-barred,
and whether or not the offender is a Czech citizen.

"2. In extradition
proceedings the person whose extradition is being considered
must have a legal adviser.

"3. The public
prosecutor shall hear such person and advise him of the contents
of the application of extradition. If such person presents
facts which disprove the suspicion and in support offers evidence
which may be examined without considerable delay, the preliminary
investigation shall also apply to such evidence."

39. Upon
termination of the preliminary investigation the Regional Court
decides, on the basis of the motion of the prosecutor, whether
the extradition is admissible and submits the matter to the Ministry
of Justice. Extradition is permitted by the Minister of Justice
only after the Regional Court has ruled that the extradition is
admissible. Should the Minister of Justice have any doubts as
to the correctness of the ruling of the Regional Court, he can
submit the matter to the Supreme Court for re-examination of the
ruling.

40. In
the process of deciding on extradition, the admissibility of extradition
is always examined in the light of pertinent international agreements,
i.e. including the Convention.

41. As
concerns the prohibition of expulsion or refoulement, the obligation
is regulated above all by sections 16 to 18 of the Act No. 123/1992
on the stay of aliens in the territory of the Czech Republic.
According to the provisions of section 18, an alien cannot be
expelled to a State where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a
particular social group or political opinion. This does not apply
if an alien is posing a threat to the security of the State or
has been convicted of a particularly serious criminal offence.
An alien cannot be expelled to a State which claims his extradition
on account of a criminal offence for which the law of the State
stipulates capital punishment.

42. Provisions
regulating the conditions of extradition or return of aliens are
embodied in Act No. 498/1990 on refugees, as amended by Act No.
317/1993. According to section 17 of the Act, an applicant for
refugee status or a refugee cannot be extradited or returned to
the country where his life or freedom would be endangered on account
of his race, religion, nationality, membership of a particular
social group or political opinion. This does not apply if a refugee
is posing a threat to the security of the State or has been convicted
of a particularly serious criminal offence committed intentionally.
In such a case the alien may be allowed to seek admission to another
State.

43. As
far as treaty law on extradition is concerned, there is a generally
accepted principle that extradition will not be undertaken if
it is contrary to the principles of the legal system or to the
public order of the requested party. If both sides are bound by
the Convention, this article of the Convention will also be applied
in their mutual relations.

Article 4

44. As
has already been mentioned above (see para. 11), an amendment
to the Criminal Code, containing a new definition of the criminal
offence of "torture and other inhuman or cruel treatment"
has been adopted as section 259a of the Criminal Code.

45. Acts
described in article 1 of the Convention may be covered by the
definition in section 158 of the Criminal Code (abuse of the authority
of a public official), and possibly also by the definitions under
section 196, paragraph 2, of the Criminal Code (violence against
a group of residents and against individuals), sections 221 and
222 of the Criminal Code (health injury), section 231 of the Criminal
Code (restriction of personal freedom) or section 235 of the Criminal
Code (extortion).

46. The
term "public official" means an elected official or
other responsible employee of a State or local authority, court
of justice or other State organ or a member of the armed forces
or armed corps performing his/her tasks on behalf of the society
and the State and exercising the authority bestowed upon him for
the purpose of the performance of the tasks. The criminal responsibility
of a public official depends on whether the crime in question
was committed in connection with his/her authority and responsibility
(sect. 89, para. 9, of the Criminal Code).

47. The
term "severe injury to health" means a serious illness
or other damage to a person's health caused by mutilation, disfigurement,
damage of a vital organ or loss or considerable weakening of the
functioning of a sensory organ. A severe injury to health may
also be a long-term disorder (sect. 89, para. 7, of the Criminal
Code).

48. Whoever
believes that he/she has been victim of torture or other cruel,
inhuman or degrading treatment or punishment may report the fact
to a prosecutor, an investigator or a police organ, who have the
duty to accept the report (sect. 158, para. 1, of the Criminal
Code). The public prosecutor is obliged by law to prosecute all
criminal offences reported to him; exceptions are admissible only
in cases stipulated by law (e.g. prescription) or by a promulgated
international treaty (sect. 2, para. 3, of the Criminal Code).

49. Under
Czech criminal law an attempt to commit the crime of complicity
or participation in a criminal offence is equally as punishable
as the criminal offence itself. Section 8, paragraph 2, of the
Criminal Code states: "The attempt to commit a crime shall
be punishable by the penalty provided for the committed crime."

50. Section
9, paragraph 2, of the Criminal Code states: "If a crime
was committed by the joint action of two or more persons, every
one of them shall be criminally liable as if he alone had committed
the crime (accomplices)."

51. Section
10, paragraph 2, of the Criminal Code states: "The criminal
responsibility and punishability of a participant in a criminal
offence shall be governed by the provisions on criminal responsibility
and punishability of the offender, unless the present Code provides
otherwise."

Article 5

52. The
provisions of paragraph 1 (a) find their expression in section
17, paragraph 3 of the Criminal Code as amended by Act No. 290/1993,
altering and amending the Criminal Code. The provisions extend
the applicability of the Act to cases of criminal offences committed
on board a vessel or aircraft registered in the Czech Republic
outside the territory of the State: "Czech law shall be applied
also to determine the punishability of an act committed on board
a vessel or aircraft registered in the Czech Republic."

53. The
provision of paragraph 1 (b) is contained in section 18 of the
Criminal Code: "Czech law shall be applied to determine the
punishability of an act committed abroad by a Czech citizen or
stateless resident of the Republic."

54. The
provisions of paragraph 1 (c) have found their expression in section
20a, paragraph 1, of the Criminal Code: "Czech law shall
also be applied to determine the punishability of an act when
this is provided by a promulgated international treaty by which
the Czech Republic is bound.".

55. Czech
legislation covers paragraph 2 of this article first of all by
the provision of section 20, paragraph 1, of the Criminal Code:

"Czech law
shall also be applied to determine the punishability of an
act committed abroad by an alien or a stateless person who
is not a resident of the Republic, if:

(a) the act is
also punishable under the law in force in the territory where
it was committed; and

(b) the offender
is apprehended on the territory of the Republic and is not
extradited to a foreign State for criminal prosecution.".

56. This
provision of the Convention is also reflected in section 20a,
paragraph 1, of the Criminal Code.

Article 6

57. In
this article, the Convention proceeds from the principle of aut
dedere aut judicare which is established in the Czech legal
system. The State takes a person suspected of having committed
torture into custody even if that person will not be prosecuted
in the Czech Republic but will be extradited for prosecution in
another State.

58. In
accordance with the above-mentioned principle of aut dedere
aut judicare, reference can also be made to the provision
of section 381 of the Code of Criminal Procedure, which relates
to the so-called extradition custody to which the provisions of
section 67 of the Code of Criminal Procedure do not apply. These
provisions make it possible to take into custody a suspect whose
extradition may be requested by another State even before the
application for extradition has been submitted:

"(1) The
President of the Senate of the Regional Court at the instance
of the Public Prosecutor conducting the preliminary investigation
may take the person whose extradition is being considered
into custody if it is necessary for preventing the escape
of such person.

(2) If the extradition is found admissible, the Regional Court
shall take the person whose extradition is being considered
into custody, in case the President of the Senate has not
done so according to paragraph 1. In doing so, the court shall
not be bound by the grounds for a custody as specified in
section 67.

(3) If extradition
is not found admissible or if the Minister of Justice orders
so, the arrangements shall be made immediately for the person
to be released from custody.".

59. The
investigation to ascertain the fact whether the said persons have
committed the criminal offence stated in article 4 of the Convention
is governed, first of all, by the provision of section 160 of
the Code of Criminal Procedure, under which the investigator is
obliged to initiate criminal prosecution without delay, if the
established facts indicate that a criminal offence has been committed.
During the investigation the investigator is duty-bound to proceed
in such a manner as to clarify as speedily and as completely as
possible all the facts needed for the consideration of the case.
Thus, the Code of Criminal Procedure provides adequate guarantees
for the implementation of paragraph 2. Apart from that, the observance
of the law throughout the entire proceedings is supervised by
a prosecutor who is entitled, inter alia, to issue binding
instructions to the investigators, including to carry out individual
acts of investigation, etc.

60. As
concerns the application of paragraph 3 of article 6, in the criminal
prosecution of foreign nationals account is taken throughout the
proceedings of the provisions of relevant bilateral consular conventions
or the Vienna Convention on Diplomatic Relations. The provision
of article 36 of that Convention, covering communications and
contacts of consular officials of the sending State with its nationals,
has been incorporated into Czech legislation.

61. In
case an accused alien in custody applies for a consular visit
by a representative of his/her home country, the application is
granted. Similarly, an application by a diplomatic mission of
the pertinent State for a consular visit to an accused national
is also granted. Only in the case where there is risk of a criminal
act being committed through collusion is the organ in charge of
the criminal proceedings notified of the application for a consular
visit, upon which it shall take the necessary steps within the
limits of its jurisdiction.

62. To
ensure the application of paragraph 4 is merely a matter of organizational
measures. Similar provisions are included in bilateral consular
agreements between the Czech Republic and other States and also
in the Instructions of the Ministry of Justice of 15 November
1982, No. 1900/1982.

Article 7

63. The
provision of paragraph 1 of article 7 corresponds in the Czech
legal system with section 2, paragraph 3, of the Code of Criminal
Procedure: "The prosecutor is duty-bound to prosecute all
criminal offences of which he has learned; exceptions are admissible
only under the law or under a promulgated international treaty.".

64. These
exceptions concern, in particular, persons enjoying privileges
and immunities. According to section 11, paragraph 1, of the Code
of Criminal Procedure, as amended, penal prosecution is not admissible
in some other cases, which are as follows:

(a)
If it is so ordered by the President of the Republic in pursuing
his right to grant pardon or amnesty;

(b)
If the prosecution has become prescribed;

(c)
If it involves a person who is exempt from the jurisdiction of
the organs acting in criminal proceedings, or a person who may
be prosecuted only with special authorization under the law, and
such authorization has not been issued by the respective organ;

(d)
If it involves a person who is not criminally responsible because
he/she is under age;

(e)
Against a person who died;

(f)
Against a person whose previous prosecution for the same act ended
in a judgement issued by a court or was definitively closed provided
that such decision has not been voided in the prescribed proceedings;

(g)
Against a person who has previously been prosecuted for the same
act which prosecution ended in a final decision of another organ
authorized to prosecute criminal offences, provided that such
decision has not been voided in the prescribed proceedings.

65. The
provision of paragraph 2 of article 7 corresponds with section
2, paragraph 1, of the Code of Criminal Procedure: "No person
may be prosecuted as an accused on any grounds other than those
defined by the law or in any manner other than that prescribed
by this Code.".

66. In
case the accused or convicted alien is in custody or in prison,
his/her human and civic rights are observed, including respect
for his legal position as an alien.

67. In
connection with the provision of paragraph 3, reference is made
to the position stated in paragraphs 7 to 22 of this report.

Articles
8 and 9
68. Nothing in the internal legislation prevents the implementation
of the obligations resulting from these articles. For this purpose
the Czech Republic has concluded treaties on extradition or on
legal assistance in criminal matters with a total of 39 States.
Furthermore, the Czech Republic does not make extraditions conditional
upon the existence of such a treaty and it is also willing to
extradite persons on the basis of reciprocity.

Article
10
69. Nothing in the internal legislation of the Czech Republic
prevents the full introduction of textbooks and information on
the prohibition of torture in the training programme of public
officials and other persons connected with custody, interrogation
or treatment of persons subject to any type of detention, custody
or imprisonment. The Police Academy of the Czech Republic, the
Recruitment and Training Department of the Ministry of the Interior
of the Czech Republic, the Prison Guard Service of the Czech Republic,
etc. are responsible for the fulfilment of the steps.

70. The fulfilment of the obligations following from paragraph
1 falls under the jurisdiction of the police authorities, the
Prison Guard Service and the prosecution. These principles have
already been mentioned in paragraphs 23 and 24. Officials of the
designated section of the Public Prosecutor's Office of the Czech
Republic and commanders of the armed forces receive adequate education
on this subject during their studies at civil and military schools
and their knowledge is continuously further advanced by their
superiors.

71. The Code of Criminal Procedure and other regulations covering
the role and activities of these bodies deal not only with torture:
they also provide that the person and human dignity of the accused
and of the convicted person or other persons involved in criminal
proceedings should be otherwise respected as well (sect. 52 of
the Code of Criminal Procedure).

72. The pertinent organs of the prison guard corps are duty-bound
in relation to their own officials as well as to civilian employees
to create favourable conditions for the improvement of their professional
standards (sect. 29 of the Act of the Czech National Council No.
186/1992 and sect. 74 of the Labour Code). The new conception
of training of prison personnel (the training institute of the
Prison Guard Corps of the Czech Republic has been established)
meets the above requirement, as the Convention and other legal
regulations ensuring the protection of the human and civic rights
of persons in custody and prison are included in theoretical and
practical education.

73. Under the approved concept, the training of prison personnel
is divided into three degrees:

(a) Basic degree: introductory courses, obligatory for each newly
recruited officer or civilian employee, divided into five types
according to the character of the service to be performed by individual
employees (guard and escort service, custody and punishment, court
guard, specialists in relations with prisoners and administrative
staff);

(b) Continuing degree: qualification and retraining courses;

(c) Extending degree: essentially specialized courses.

Article
11
74. Compliance with the commitments laid down in this article
is secured through the controlling and supervising activities
of the Ministry of the Interior of the Czech Republic and within
the framework of the supervision system of the police of the Czech
Republic. In the practical activities of police officers, considerable
attention is paid to consistent upholding of the law and to prevention
of curtailment of personal freedoms, including the inviolability
of the person, as provided by law. In their professional training,
regular instruction on the relevant regulations is given, particularly
to police officers who are in touch with citizens in connection
with criminal and other anti-social activities. The upholding
of the law in connection with the limitation of the constitutional
right to personal inviolability is emphasized also in internal
service acts which regulate in detail the individual fields of
service activities.

75. The conditions of custody and treatment of prisoners are subject
to constant attention on the part of service organs and organs
and organizations participating in the enforcement of custody
and prison sentences, as well as on the part of the accused and
convicted persons themselves. The accused and convicted persons
have a legally guaranteed right to lodge petitions and complaints
to the State organs of the Czech Republic and seek remedies through
these organs in case their rights have been endangered or violated.
Likewise, they are guaranteed the right to address their complaints
to the international organs authorized to process the motions
concerning the protection of human rights under the international
treaties binding for the Czech Republic. The correspondence between
the accused and convicted persons and the relevant organs is not
in any way restricted (it is mailed without delay and it is not
subjected to control).

76. Disclosed negative acts, disciplinary offences, offences or
even crimes are dealt with in accordance with valid legal regulations.

Article
12
77. Czech criminal proceedings are based, inter alia, on
the principles of legality and "officiality". The principle
of legality is set forth in section 2, paragraph 3 of the Code
of Criminal Procedure and is mentioned in paragraph 57 above.
The principle of "officiality" is first of all laid
down in section 2, paragraph 4, which states:

"Unless the
present Code provides otherwise, the organs acting in criminal
proceedings shall act ex officio. They shall deal with
criminal cases as expeditiously as possible and in doing so
shall fully respect the civic rights guaranteed by the Constitution
..."

78. In this context, the duty of the organs acting in criminal
proceedings to accept reports on criminal offences according to
section 158 of the Code of Criminal Procedure also applies fully
to criminal offences committed by means of activities mentioned
in articles 1 and 16 of the Convention.

79. Paragraph 5 of section 2 states:

"The organs
acting in criminal proceedings shall act so as to ascertain
the factual merits of the case that do not cause any well-founded
doubts, to the extent necessary for their decision. They shall
clarify with the same care the circumstances speaking in favour
as well as against the accused person without waiting for
the parties to move. Admission of guilt by the accused shall
not relieve the organs acting in criminal proceedings of their
duty to review and ascertain by all available means all the
circumstances of the case."

80. The term "organs acting in criminal proceedings, means,
under section 12, paragraph 1, the court, the public prosecutor,
the investigator and the police organ.

81. The prison guard corps generally and consistently ensure an
expeditious and impartial investigation of alleged cases of torture
with respect to both accused and convicted persons, as well as
to officers and civilian employees of the prison guard corps.
However, cases of violence (extortion, assault and torture) occur
mainly among the prisoners.

82. From 1 January 1992 to 31 July 1993, 541 cases of violence
were committed by prisoners, out of which:

(a) Three-hundred and eleven cases were solved by disciplinary
measures within the limits of the jurisdiction of the organs of
the prison guard corps;

(b) In 157 cases, the initiation of criminal proceedings was proposed;

(c) Forty cases were suspended and submitted for disciplinary
proceedings to the organs of the prison guard corps;

(d) In 9 cases, criminal proceedings were initiated; and

(e) Twenty-four cases were submitted to the police of the Czech
Republic.

83. If the officers of the prison guard corps, due to their negligence,
allow the occurrence of violence among the prisoners, they shall
be prosecuted under the pertinent provision of the Code of Criminal
Procedure. For example, on 27 April 1993 criminal proceedings
against two officers from the Praha-Ruzyne prison who, due to
their negligent control, did not discover the symptoms of torture
in the case of an accused youngster, were initiated according
to section 159, paragraph 1, of the Criminal Law, and on 21 July
1993 criminal proceedings against three officers from the Praha-Pankrác
prison who illegally forced an accused person to perform various
acts were initiated according to section 158, paragraph 1 (a)
and section 237 of the Code of Criminal Procedure.

Article
13
83. As has already been said above, the implementation of the
article is ensured by legal provisions of various importance.
The provisions concerned are:

(a) Article 18, paragraph 1, of the Charter of Fundamental Rights
and Freedoms, guaranteeing the right to petition;

(b) Act No. 85/1990 on the right to petition regulating the right
of every person "... to address, himself or jointly with
other individuals, to State organs requests, suggestions or complaints
in matters of public or other common interest that fall within
the jurisdiction of these organs" (sect. 1, para. 1). Section
2 of the Act says that "no person can be hindered in the
exercise of his right to petition. No person may suffer detriment
because of having exercised this right.";

"The prosecutor,
the investigator and the police organ are duty-bound to accept
reports on facts indicating that a criminal offence has been
committed and to process them as expeditiously as possible;
in doing so they are obliged to instruct the reporting person
of his/her responsibility for intentionally false information
and in case the reporting person requests so to inform him/her
within a month of the measures taken."

This provision applies naturally also to acts falling under the
definition of torture according to article 1 and article 16 of
the Convention. Furthermore, section 159, paragraph 4, of the
Code of Criminal procedure states that "the dismissal of
the case shall always be notified to the reporting person, who
may lodge a complaint against it ...";

(d) Section 167 of the Code, which provides for the right of the
accused to ask the prosecutor to re-examine the procedures followed
by the investigator: "The accused and the aggrieved have
the right, at any time in the course of the investigation, to
request the prosecutor to put an end to delays in the investigation
and defects in the procedure followed by the investigator. Such
request must be submitted to the prosecutor immediately and he
must process it without delay. The person who has submitted the
requests, must be informed of the result of the re-examination.";

(e) Section 33 of the Code which lists the rights of the accused,
especially his/her right to submit motions to seek legal remedies,
etc.;

(f) Act No. 292/1993 which amends and supplements Act No. 141/1961
on criminal procedure (Code of Criminal Procedure) by extending
section 55 by a new paragraph which reads: "(2) If the witness
or a person closely related to him/her is in apparent danger of
the detriment to health or other serious danger the first name
and the family name of the witness and his/her other personal
data shall not be included in the protocol but shall be recorded
separately from the records of criminal proceedings and revealed
only to the organs acting in the criminal proceedings. A witness
shall be instructed about his right to sign the protocol of interrogation
by a made-up first name and family name under which he/she shall
be recorded thereafter. If the reasons for keeping the personal
data of a witness separate cease to exist the data shall be added
to the records of the criminal proceedings.".

84. In the practice of the prison guard corps, the right to lodge
a complaint (and the corresponding duty to re-examine and solve
the matter carefully) is ensured, as is the protection of the
complainant and witnesses, e.g. by their relocation to other cells,
etc.

85. From 1 January 1992 to 31 July 1993, 2,448 complaints were
lodged, of which:

(a) Eighty-five reported physical violence on the part of prison
guard officers;

(b) Thirty-four reported incorrect behaviour or physical violence
among the accused and convicted;

(c) Forty-eight cases reported unsuitable or offensive statements
on the part of prison guard officers.

Careful re-examination of the contents of the lodged complaints
disclosed that about 10 per cent of them were well-grounded.

Article
14
86. As has been already stated in paragraphs 16 and 29 in this
report, the legal system of the Czech Republic provides for compensation
for damage caused to victims of unlawful acts.

87. The right to just and adequate compensation in the meaning
of article 14 of the Convention is provided for in Act No. 58/1969
on the responsibility of the State for damage caused by a decision
of a State body or by its incorrect official action. Section 18
of that Act says:

"(1) The State is responsible for damage caused within the
framework of the fulfilment of the tasks of State organs through
improper official procedure followed by persons fulfilling these
tasks.

"(2) Nobody can be relieved of the responsibility under paragraph
1".

88. The provisions of the aforementioned Act No. 119/1990 on judicial
rehabilitation (see para. 29) fall within this category as well.

Article
15
89. The obligation following from this article is now fully covered
by the new provision of section 89, paragraph 3, of the Code of
Criminal Procedure: "Evidence obtained through unlawful coercion
or threat of such coercion shall not be used in proceedings except
as evidence against the person who has applied such coercion or
threat of coercion."

90. In Czech criminal law, the accused has the right, but not
the duty, to be called to witness, as provided by section 91,
paragraph 1, of the Code of Criminal Procedure:

"The interrogation of the accused person shall be conducted
so as to provide the fullest and clearest possible picture of
the facts which are important for the criminal proceedings. The
accused person shall in no way be forced to be called to witness
or to confess, and in the course of the interrogation his person
shall be respected. The confession of the accused person shall
not relieve the organs acting in criminal proceedings of their
duty to examine and verify by all accessible evidence all the
facts of the case."

91. The above-mentioned provision is furthermore enhanced by the
principle of the proceedings being conducted viva voca,
according to which the foregoing interrogation of the accused
must be repeated before the court, and by the principle of publicity
according to which the main court proceedings must be open to
the public. The interrogation of witnesses is conducted in a similar
manner with the substantial difference that a witness is, naturally,
obliged to testify, unless the law provides explicitly for the
right of the witness to deny testimony or unless the law prohibits
interrogation. (The latter applies to circumstances that are subject
to State secret and to persons who by their deposition would violate
the duty of discretion imposed on them by the State.

Article
16
92. The legal system of the Czech Republic and the practice of
its application are fully oriented towards protection against
all other cases of cruel, inhuman or degrading treatment or punishment
which do not fall under the term of torture as defined in article
1 of the Convention. The provisions applying here are similar
to those stated in respect of the relevant articles on torture.
In particular, the obligations resulting from the provisions of
articles 10, 11, 12 and 13 are applied identically.

Concluding
note
93. From November 1989 to the end of 1993 when the Criminal Code
was amended, the endeavour to ensure consistent compliance with
the obligations following from the Convention produced distinct
results in the spheres of both legislation and implementation.
Its effect was also positive in other spheres, e.g. in organizational
and personnel measures within the competent organs, in the effort
to ensure greater transparency of their activities and to enhance
parliamentary and public supervision over their activities as
a result of the freedom of speech in mass media, etc. Since the
time the initial report of the Czech and Slovak Federal Republic
was presented, the guarantees of political and institutional nature
have been further enhanced.